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United States Court of Appeals
for the Armed Forces
450 E Street, Northwest Washington D.C. 20442-0001

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Tuesday, May 2, 2006

9:00 a.m.

United States v.	Michael P. Jenkins	No. 06-0027/AF
(Appellee)	(Appellant)

Counsel for Appellant: Capt John S. Fredland, USAF
Counsel for Appellee: Capt Jefferson E. McBride, USAF

Case Summary: GCM conviction of using cocaine and marijuana, assault with a dangerous weapon, disorderly conduct, and communicating a threat. Granted issue questions whether the military judge abused his discretion in admitting Appellant’s confidential communications with a psychologist during a commander-directed mental health evaluation.

10:00 a.m.

United States v.	Justin M. Lewis	No. 05-0551/MC
(Appellee)	(Appellant)

Counsel for Appellant: LT Brian L. Mizer, JAGC, USNR
Counsel for Appellee: Capt Roger E. Mattioli, USMC

Case Summary: GCM conviction of attempted distribution of ecstasy, conspiracy to use and distribute a controlled substance, using ecstasy, ketamine, LSD, and methamphetamine, possessing ketamine, possessing ecstasy with intent to distribute, and distributing ecstasy. Granted issues question: (I) whether the lower court erred when it held that the in-court accusations by the staff judge advocate and trial counsel that the military judge was involved in a homosexual relationship with the civilian defense counsel amounted to unlawful command influence but were harmless beyond a reasonable doubt, (II) whether the Government denied Appellant his right to a speedy trial under the United States Constitution and Article 10, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 810, and (III) whether Appellant was denied due process of law where he served his entire sentence of forty-two months confinement before the lower court reached a decision in his case.

11:00 a.m.

United States v.	Sean B. Vanderschaaf	No. 06-5003/AR
(Appellee)	(Appellant)

and

United States v.	Joshua J. Alexander	No. 06-5004/AR
(Appellee)	(Appellant)

Counsel for Appellant: Capt Larry W. Downend, JA
Counsel for Appellee Vanderschaaf: Maj Charles L. Pritchard, Jr., JA
Counsel for Appellee Alexander: Capt Stephen P. Watkins, JA

Case Summary (Vanderschaaf): GCM conviction of wrongful use of marijuana and ecstacy and wrongful distribution of marijuana, ecstacy, hashish, and amphetamines. The U.S. Army Court of Criminal Appeals held that the findings and sentence were correct in law and fact, but subsequently ordered the deletion of the words “on divers occasions” from various specifications. The Judge Advocate General of the Army certified the following issue to the Court: Whether the United States Army Court of Criminal Appeals erred in ordering the deletion of the words “on divers occasions” from Specifications 1 through 6 of Charge II and Specifications 1 and 2 of Additional Charge I when the convening authority approved the adjudged findings and the Army Court affirmed the findings and sentence as approved by the convening authority.

Case Summary (Alexander): GCM conviction of wrongful use and distribution of marijuana in the hashish form on divers occasions while receiving special pay under 37 U.S.C. 310. The U.S. Army Court of Criminal Appeals held that the findings and sentence as approved by the convening authority were correct in law and fact, but the court subsequently ordered the deletion of the words and figures “while receiving special pay under 37 U.S.C. 310” from two specifications. The Judge Advocate General of the Army certified the following issue to the Court: Whether the United States Army Court of Criminal Appeals erred in ordering the deletion of the words and figures “while receiving special pay under 37 U.S.C. 310” from Specifications 1 and 2 of the Charge when the convening authority approved the adjudged findings and the Army Court affirmed the findings and sentence as approved by the convening authority.

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Tuesday, May 16, 2006

1:00 p.m.

Dwight J. Loving v.	United States	No. 06-8006/AR
(Petitioner)	(Respondent)

Counsel for Petitioner: Teresa L. Norris, Esquire
Counsel for Respondent: Capt Magdalena A. Acevedo, JA, USA

Case Summary: Petitioner’s conviction and death sentence have been previously affirmed by this Court and the Supreme Court. Petitioner now questions by a Petition for Extraordinary Relief in the Nature of a Writ of Habeas Corpus: (I) whether, regardless of the unique procedural posture of this case, this Court has the authority to apply the legal holdings in Ring, Apprendi, and Wiggins in addressing the issues before the Court; (II) whether, as is made clear in Wiggins v. Smith, this Court committed clear error during mandatory review in analyzing Loving’s ineffective assistance of counsel in sentencing claim because this Court failed to address the question of “whether the investigation supporting counsel’s decision[s] . . . was itself reasonable.”; (III) whether the decisions of this Court and the Supreme Court, holding that the President’s has delegated authority over sentencing matters, must be reconsidered after Apprendi v. New Jersey and Ring v. Arizona because it is now clear that the President exceeded his delegated authority in promulgating aggravating factors in R.C.M. 1004(c) because these “factors” are elements of the crime of capital murder; and (IV) whether the decisions in Apprendi and Ring also reveal that this Court’s decision was clearly erroneous because this Court rejected the argument that the required finding that mitigating circumstances are “substantially outweighed” by aggravating factors prior to imposition of a sentence of death could only be constitutional if determined under the standard of beyond a reasonable doubt.